Ryan Iron Works Inc. v. National Labor Relations Board
| Decision Date | 08 February 2001 |
| Docket Number | No. 00-2420,AFL-CI,INTERVENORS,00-2420 |
| Citation | 257 F.3d 1 |
| Parties | (1st Cir. 2001) RYAN IRON WORKS, INC., PETITIONER, v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT. NATIONAL SHOPMEN PENSION FUND; SHOPMEN'S LOCAL 501 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS, Heard |
| Court | U.S. Court of Appeals — First Circuit |
Robert P. Corcoran, for petitioner.
William M. Bernstein, Senior Attorney, with whom Leonard R. Page, Acting General Counsel, John H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief, for respondent.
Marc H. Rifkind, with whom Lynn A. Bowers, Marc A. Tenenbaum, Slevin & Hart, P.C., Mary T. Sullivan and Segal, Roitman & Coleman were on brief, for intervenor.
Before Lynch, Circuit Judge, Coffin, Senior Circuit Judge, and Schwarzer,* Senior District Judge.
Ryan Iron Works, Inc. (Ryan) petitions for review of an order of the National Labor Relations Board (Board) finding violations of Sections 8(a)(3) and (5) of the National Labor Relations Act (Act), 29 U.S.C. §§§§ 158(a)(3) and (5). The Board has cross-applied for enforcement of its order in which it found that Ryan had committed a series of unfair labor practices during negotiations for a new collective bargaining agreement (CBA) with the bargaining representative of its employees, Shopmen's Local 501, International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO (the Union), and that an economic strike of its employees was converted into an unfair labor practice strike following an incident of direct dealing between Ryan's president and one of its workers. We affirm the Board's order with respect to the unfair labor practices but hold that the record lacks substantial support for the finding that the strike was converted prior to its termination on December 8, 1995. Accordingly, we grant the Board's application in part only.
Ryan is a corporation engaged in the fabrication of iron, steel and metal products at its plant in Raynham, Massachusetts. It has been party to a series of CBAs with Local 501 for more than twenty-five years. The most recent CBA between the parties was in effect from September 11, 1992, to September 10, 1995. The events giving rise to this controversy occurred in the course of the negotiations for a successor CBA.
The parties met in negotiations eight times from August 18 to November 10, 1995. The Union presented a list of demands, including significant wage and benefits increases, and Ryan, in turn, proposed to reduce wages and benefits in several areas. At the August 29 session, Union representative David Mortimer (Mortimer) told Ryan's negotiating team that the company's proposal was "an insult and a piece of garbage" and that the Union "would not give up one cent" in give backs or concessions of any kind. Another Union official made a similar comment at the August 31 session, where Ryan offered to increase its pension and health insurance contributions, and reiterated that the Union would not agree to any give backs or concessions.
On September 7 the Union filed an unfair labor practice charge against Ryan for failure to bargain in good faith, a charge that was ultimately rejected by the Board. On September 8 the employees voted to reject Ryan's proposal. Because of the pendency of the charge, the Union told its members that a strike would be an unfair labor practice strike as opposed to an economic strike, meaning that none of them could be permanently replaced.1 The members took a strike vote and went out on September 11, the day after the CBA expired. The parties continued to meet, however, and at the September 18 session the Union modified its proposal, reducing both its hourly wage and pension fund contribution demands. Ryan rejected this proposal and on October 2 countered with a proposal which included an increase in vacation time for certain employees and the shoe allowance but enlarged its right to subcontract unit work. The Union rejected this proposal but made a counterproposal for a three-year contract providing for increased wages and pension contributions.
On October 23, Ryan's president, Howard Shea (Shea), invited Wallace Penniman (Penniman), who was walking the picket line with twenty to thirty other striking employees, to take a ride to inspect one of Ryan's construction jobs. Penniman agreed and the two men drove off. The parties dispute much of the content of the conversation during that car trip. According to Penniman, Shea stated "that it was the Union's fault [that negotiations were going poorly] because they weren't negotiating with the Company" and asked what exactly the men wanted. Penniman told Shea that the employees' main concern was seniority, and Shea responded that Ryan's proposal on seniority was merely a bargaining tool or a smokescreen to gain concessions. Shea told Penniman "that [Ryan] was going to need another three-year pay freeze to be competitive with the non-union shops." The two men then discussed the possible pay freeze, as well as vacations, holidays, work boot allowances, subcontracting, pensions, health insurance and arbitration. According to Penniman, the discussion was extensive, lasting the entire drive to Waltham and back, a trip of about three hours. Before dropping him off, Shea told Penniman that this was the type of negotiating he was hoping for from the Union and said that there were only a few items on Ryan's list that it needed. As Penniman got out of the car at the picket line, Shea told him "not to worry about it, that it was going to be resolved."
In his testimony, Shea admitted that he told Penniman that the Union had refused to respond to any of the company's proposals but denied that there was any substantive discussion of Ryan's bargaining proposals. According to Shea, when Penniman asked him about the negotiations, Shea told him they should not discuss them.
The Administrative Law Judge (ALJ) accepted Penniman's version of the conversation and found that Shea had dealt directly with an individual employee concerning the negotiations, thereby unlawfully bypassing and undermining the Union.
Penniman testified that the conversation led him to feel optimistic about the possibility of a quick resolution and that he shared it with the other picketers who saw him leave and return with Shea. Later that day he told Union representative Mortimer about the conversation and Mortimer arranged for another negotiating session on October 25. The parties dispute whether the Union brought up the Shea/Penniman conversation at that session. Ryan argues that there was no mention of the incident and Mortimer testified as much, but Union negotiator James Devlin testified that when he raised the question of the differences between the positions taken by Ryan at the table and those taken away from the table he was referring in part to the Shea/Penniman incident. In any case, Ryan did not change its position. When Union officials reported this to the employees, the employees reacted with disappointment and anger. Having been led to believe that an early resolution was in the offing, some blamed the Union for the lack of progress.
On November 6 Ryan unilaterally altered the terms of employment by implementing the changes in the CBA set out in its October 2 proposal. On November 10 it also discontinued contributions to the National Shopmen Pension Fund (Fund) required under the expired CBA. At the final negotiating session on that same day, the Union modified its earlier proposal and accepted some of Ryan's proposals. Ryan rejected the Union proposal and stood on its October 2 proposal. On November 16 the Union withdrew its previous proposal and offered a three-year extension of the expired contract with several wage freeze concessions. On November 21 Ryan rejected that proposal but told the Union that it was willing to meet to "discuss the significant differences between them."
On December 7 Ryan received a petition signed by fifty-five employees stating that they no longer wished to be represented by the Union and it notified the Union that it was therefore withdrawing recognition from the Union. On December 8 the Union voted to end the strike and faxed Ryan a letter offering the return of all striking workers to their jobs by December 11. When the workers showed up they were met by Shea, who told them there were no jobs for them.
We grant the Board "deference with regard to its interpretation of the Act as long as its interpretation is rational and consistent with the statute." NLRB v. Beverly Enters.-Mass., Inc., 174 F.3d 13, 22 (1st Cir. 1999). "The Board's findings of fact are conclusive if supported by substantial evidence on the record considered as a whole." Id. at 21. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citation omitted). The ultimate question is "'whether on this record it would have been possible for a reasonable jury to reach the Board's conclusion.'" NLRB v. Hosp. of San Pablo, Inc., 207 F.3d 67, 70 (1st Cir. 2000) (quoting Allentown Mack Sales & Svc., Inc. v. NLRB, 522 U.S. 359, 366-67 (1998)).
The Board accepted the ALJ's finding that Shea's discussion with Penniman was a violation of Section 8(a)(5), which prohibits employers from bypassing the Union and dealing directly with employees. Ryan initially attacks the ALJ's credibility determination, which was based principally on the relative demeanor of the witnesses and affirmed by the Board.2 That determination...
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